I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Brazil is a country with a population of approximately 207 million. Immigration has been essential for the development of Brazil and it is still considered a key factor for the future of the country.
Recognising the importance of immigration, new policies aim to make the process faster and easier for foreigners to come to Brazil. Accordingly, in the past three years new procedures have been introduced to expedite and facilitate the granting of certain work visas, and also to grant immediate residence in the case of some applications reuniting families and under the Mercosur Agreement, and a new bill on immigration has just been approved.
Taking into account the restriction on immigration in countries such as the United States and the United Kingdom, Brazil becomes an opportunity due to its current rules that not only allow, but, moreover, incentivise, foreigners to study and work in the country.
i Legislation and policy
On 18 April 2017, the New Migration Law (SCD 7/2016), which establishes rules for the entry and residence of immigrants in Brazil, was voted on and approved by the Senate. Finally, on 24 May 2017, the new Migration Law No. 13,445 was sanctioned by President Temer and was published on 25 May 2017. In this regard, the New Migration Law will enter into effect within 180 days from the publication of the Official Gazette (i.e., on 21 November 2017).
The new law foresees the possibility of equal status of immigrants to that of Brazilians and access to public health and education services, as well as the right to enter into the labour market and access social security benefits.
In addition, an amnesty for immigrants who entered Brazil before 6 July 2016 was foreseen in the new Migration Law for those who apply until one year after the law comes into effect, regardless of the previous migratory situation. Although the project had initially foreseen an amnesty for immigrants, the President vetoed several items in the new bill including the amnesty for those immigrants currently living illegally in the country, based on the argument that the provision would grant ‘indiscriminate amnesty to all immigrants’.
However, under the new law it is possible for someone who is irregular in Brazil to apply for an authorisation to reside if, for example, the individual has a job offer. In this regard, this could be foreseen as a possibility for those who are irregular in Brazil to become regular.
In addition, in the new bill there was a provision allowing indigenous people to move across traditionally occupied lands regardless of country boundaries, but this article was also vetoed by the President.
One important change under the new law is that there will be no ‘permanent visa’, and in its place will be an ‘authorisation to reside’. The rules governing the granting of the authorisation to reside will still be published in a Decree that will regulate the law.
Another relevant change is that foreigners with university degree will be able to apply for a work visa, irrespective of a company sponsoring the visa.
In view of Brazilian authorities’ concern for human rights, two new categories of visas were created: humanitarian and for health purposes (visas were already granted for those reasons, but now they are visa categories listed in the law).
Until November 2017, Law No. 6,815/80 of 19 August, regulated by Decree No. 86,715/81 of 10 December, is the law that will continue to govern the legal conditions of foreign citizens in Brazil and created the National Immigration Council. This law gives the general background for immigration, but specific situations and the granting of work permits for different types of work visas are regulated by the National Immigration Council through the issuance of Normative Resolutions. Under the new Migration Law, it is expected that the National Immigration Council will continue to have the same role. At present, there are 44 normative resolutions in effect, which include, among others:
a No. 125/17 of 14 February, amended by No. 126/17 of 2 March – granting of temporary residence to nationals of a border country;
b No. 124/16 of 22 December – transformation of the temporary migration condition of students to the temporary migration condition of workers;
c No. 121/16 of 16 February – temporary visas for professional athletes;
d No. 119/15 of 9 December – temporary visas for training of foreign athletes between 14 and 18 years of age and for sports exchange;
e No. 118/15 of 10 February amended by No. 127/17 of 28 March – permanent visas for individual foreign investors;
f No. 116/15 of 8 April – visas for scientists, researchers and foreign professionals coming to Brazil to participate in conferences, seminars, congresses and meetings and for students of any level of graduation or post-graduation;
g No. 108/14 of 12 February – temporary and permanent visas and permanent residence for the purposes of family reunion;
h No. 104/13 of 16 May – procedures for work permit applications;
i No. 100/13 of 23 April – short-term (90-day) technical assistance visas for foreigners coming to Brazil for technology transfer or rendering of technical services without an employment relationship;
j No. 99/12 of 12 December – work permits for temporary visas with employment contracts in Brazil;
k No. 97/12 of 12 January amended by No. 123/16 of 13 September – permanent visa for Haiti nationals;
l No. 94/11 of 16 March – temporary visas for foreign students or recently graduated foreigners coming to Brazil under professional exchange programmes;
m No. 88/10 of 15 September, amended by No. 111/14 of 3 June and by No. 115/14 of 9 December – temporary visas for trainees;
n No. 87/10 of 15 September – visas for professional training of foreigners who are employees of foreign companies belonging to the same economic group of Brazilian headquarters, branches or subsidiaries;
o No. 72/06 of 10 October – temporary visas to work aboard foreign vessels or platforms;
p No. 62/04 of 12 December, amended by No. 95/11 of 10 August, by No. 104/13 of 16 May and by No. 127/17 of 28 March – work permits and permanent visas for foreign administrators, managers, directors or officers with management powers, of civil or commercial societies, or economic groups or conglomerates;
q No. 61/04 of 12 December, amended by No. 73/07 of 9 February and by No. 100/13 of 23 April – work permits for foreigners coming under technology transfers or technical assistance agreements, cooperation or partnership agreements, without employment relationships, or in emergency situations;
r No. 45/00 of 14 March amended by No. 95/11 of 10 August – permanent visas for retired foreigners;
s No. 27/98 of 25 November – special and omitted situations for analysis by the National Council of Immigration; and
t No. 06/97 of 21 August, amended by No. 91/10 of 10 November – permanent residence for asylum seekers or refugees and their families.
Once the New Migration Law enters into effect, both Law No. 6,815/80 of 19 August, and its regulatory Decree No. 86,715/81 of 10 December, will be revoked, and another Decree regulating the new law will be issued.
ii The immigration authorities
The main authorities responsible for immigration in Brazil are the Ministry of Labour and Employment, the Ministry of Justice and the Ministry of Foreign Affairs. Each of these ministries has specific structures regarding immigration.
Ministry of Labour and Employment
The Ministry of Labour and Employment is the government body that is structured to regulate and analyse, through the National Immigration Council and the General Coordination of Immigration, most of the immigration processes and procedures for foreigners to work, study and reside in Brazil.
The National Council of Immigration is composed of appointed representatives from the Ministries of Labour, Justice, Foreign Affairs, Agriculture, Science and Technology, Development, Industry and Foreign Trade, Health and Education, as well as representatives of companies and trade unions. It is also responsible for:
a formulating immigration policies and coordinating and directing immigration actions;
b regularly assessing the need for qualified foreign workers for the granting of entry on a permanent or temporary basis;
c undertaking research on immigration-related problems;
d issuing norms for immigrant selection aimed at providing specialist workers for the various sectors of the economy;
e collecting resources for specific sectors;
f clarifying and presenting solutions for areas not clearly defined in immigration-related cases;
g providing opinions regarding possible changes to immigration law upon their proposition by any part of the executive branch; and
h creating internal control regulations, subject to the approval of the Minister of Labour.
The General Coordination of Immigration is responsible for the analysis and granting of requests for work permits for temporary and permanent visas for foreigners coming to work in Brazil, and also for training and internship purposes.
Ministry of Justice
The Ministry of Justice is the governmental body that is structured to regulate, through the following divisions, the entry and stay of foreigners in Brazil.
Foreigners Permanency Division
The main duties of the Foreigners Permanency Division are to:
a control, guide and execute the activities related to the processing of visas, permanent residence, asylum and extension of the period of the foreigners’ stay in Brazil;
b observe and enforce legislation and case law pertaining to matters within its area of competence; and
c arrange for the publication of official acts related to the division.
This is the division that authorises the entry of a foreign citizen at the port of entry in Brazil and extends the stay while in Brazil.
The Federal Police Bureau
Federal police agents have the discretionary power to allow the entry of foreigners into the country irrespective of whether they hold appropriate visas. Registration with the federal police and entry onto the Foreigners National Register (RNE) for those who carry temporary or permanent visas is mandatory within 30 days of the date of arrival. In some Brazilian states, the lack of registration within this period will prevent the foreigner from re-entering the country and another process to request a new visa would be required. Tourists and business visitors are exempt from this rule.
General Coordination of Refugee Affairs
General Coordination of Refugee Affairs (CONARE) is the collective body that brings together representative segments of the government sector, civil society and the United Nations, and has the aim of examining the application of the recognition of refugee status, deciding on the termination ex officio or at the request of the competent authorities of the refugee status, declaring the loss of refugee status, guiding and coordinating the actions needed for effective protection, assistance, local integration and legal support to refugees, with the participation of ministries and institutions in CONARE, and of approving normative instructions that enable the implementation of the refugee-related legislation.
Department of Foreigners
The main duties of the Department of Foreigners are to process, opine and address the issues related to nationality, naturalisation and the legal status of foreigners. It is also the body responsible for matters related to the coercive measures of expulsion, extradition and deportation, and for instructing processes for the transfer of prisoners, recognition of refugee status and political asylum, and providing support to CONARE.
Division of Compulsory Measures
The main duties of the Division of Compulsory Measures are to:
a control, guide and execute the activities related to foreign expulsion procedures and revocation of expulsion;
b receive, process and control procedures for the transfer of domestic and foreign prisoners to serve their sentences in their home country and in Brazil, in compliance with international agreements to which Brazil is a party;
c receive, analyse and prepare the records relating to applications for custody and documentation of active and passive extradition procedures;
d receive, record and control the foreign deportation proceedings;
e receive, analyse and forward issues relating to incidents concerning Brazilians abroad; and
f cooperate administratively with requests submitted to the Brazilian government by official bodies abroad and by the Brazilian courts.
Nationality Division and Naturalisation
The main duties of the Nationality Division and Naturalisation are to:
a control, guide and execute the activities related to the proceedings for loss of Brazilian nationality and political rights;
b recognise the equal civil rights and obligations or political rights;
c change or correct foreigners’ personal or naturalisation records, and issue second copies of naturalisation or equal rights certificates;
d endorse and apostille the naturalisation certificates and equal rights, and issue clearance certificates of naturalisation;
e receive, verify, analyse and control the naturalisation requests; and
f propose granting or denial of the naturalisation requests.
Coordination to combat trafficking of persons
Its main duties are to prepare, monitor, manage and coordinate public policies to combat human trafficking. Among other activities, it renders direct psychological and social assistance or social advisory services, provides housing, training (professional training courses), health and hospital care, and liaises with other institutions to promote or defend the rights of migrants, enters into cooperation agreements with international organisations to improve the public policy to combat human trafficking and into local agreements with governments of Brazilian states.
Ministry of Foreign Relations
The Ministry of Foreign Relations (Itamaraty) is the body responsible for foreign policy and international relations of Brazil at the bilateral, regional and multilateral levels. It advises the President in the formulation of the Brazilian foreign policy and implementation of diplomatic relations with foreign states and international organisations. There are a total of more than 220 representations of Brazil abroad, which include embassies, consulates general, consulates, vice-consulates, missions or delegations and offices. It is the Ministry of Foreign Relations, through its embassies and consulates, that is responsible for the issuance of visas to foreigners coming to Brazil.
iii Exemptions and favoured industries
In Brazil, there are no specific legal or favoured industries for immigration purposes. It is, however, mandatory, depending on the type of visa, to respect the two-thirds rule (at least two employees out of every three must be Brazilian), or have the candidates transfer technology or know-how, or train Brazilian-registered employees, so we may consider that all industries that are in compliance with these requirements may be seen as favoured industries: the more foreign manpower that can come to Brazil to transfer know-how and train the Brazilian labour force, the better.
With regard to exemption, there is a programme called ‘Mais Médicos’. This is a federal government programme for the purpose of increasing the number of doctors in specific regions of Brazil. Through an international medical exchange programme that allows foreign physicians to work in Brazil, the government strives to cover the lack of Brazilian professionals willing to work in regions in which there are shortages. The rules of the More Doctors programme for Brazil are in accordance with those of the World Health Organization.
II INTERNATIONAL TREATY OBLIGATIONS
Decree No. 6.975 of 7 October 2009 regulates the Agreement on Residency for Nationals of the States who are a party to the Mercosur Agreement.
The Mercosur Agreement applies to citizens of Mercosur signatory (Argentina, Brazil, Paraguay and Uruguay) and associated countries (Bolivia, Chile, Colombia, Ecuador and Peru).
Based on the Mercosur Agreement, nationals of any of these countries may apply for temporary residence in any of the other countries, thereby being entitled to work under the same conditions as a national, and after two years may apply for a change of temporary residence to a permanent one.
The application for the temporary residence can be made either abroad or in Brazil, even if the candidate is in Brazil in an irregular situation, in which case he or she does not have to pay a fine and is not subject to any other administrative sanctions.
ii Schengen Agreement
Decree No. 7.821 of 5 October 2012 regulates the Agreement between the Federative Republic of Brazil and the European Union on Short-Term Visa Waiver for Common Passports, signed in Brussels on 8 November 2010.
III THE YEAR IN REVIEW
Brazil continues to be in the middle of a political and economic crisis. As anticipated in the previous edition of The Corporate Immigration Review, a presidential impeachment took place in the country. The Brazilian government’s instability combined with the political and economic crisis have pushed away conservative investors in seeking business opportunities in the country.
With the success of the impeachment process, Michel Temer, former Dilma Rousseff’s Vice President, has taken office and will be in charge of the government until the end of 2018. Irrespective of the several corruption scandals being brought to light, there is an effort of the government to try to recruit the most notable figures of the Brazilian current history to join the government and revert the crisis.
Unfortunately, due to the corruption scandals this uncertainty reflects directly on the number of work permits that were requested over the past couple of years.
Nonetheless, foreign investors who foresee an opportunity are continuing to come to Brazil in order to invest in Brazil’s diverse sectors and industries.
IV EMPLOYER SPONSORSHIP
i Work permits
With the exception of short-term and emergency technical assistance visas, in which case the visas can be applied for directly at the Brazilian consulate abroad, all other types of work visas require the prior approval of a work permit by the General Coordination of Immigration.
The time line for approval of a work permit is 30 calendar days. In case of a refusal, it is possible to file an appeal. After approval of a work permit, the Ministry of Foreign Relations sends, within a maximum of five business days, an authorisation for the consulate to process the visa application. The time line for granting of the visa varies – depending on the workload of the consulate – between three business days and two months.
The normative resolutions stipulate the requirements for the granting of work permits for the different types of work visas. The most common work visas are as follows.
Officers’ permanent visa
Officers’ permanent visas (No. 62/04, as amended) are appropriate for foreign administrators, managers, officers, directors and executives with managerial powers who come to Brazil as representatives of companies, commercial groups or economic conglomerates.
The company that intends to appoint a foreign national to a managerial position must prove (1) an investment equal to or higher than the equivalent, in foreign currency, of 600,000 reais for each appointed foreign manager, or (2) an investment equal to or higher than the equivalent, in foreign currency, of 150,000 reais, for each appointed foreign manager, and generate a minimum of 10 new jobs during the first two years after the installation of the firm or the arrival of the foreign manager.
Renewal of the migrant’s RNE number and an unconditional permanent visa may be obtained provided that the foreign manager exercises the function for which the work permit was applied, in the designated company, and for the duration of the initial conditional period (period of mandate, or a five-year period if the mandate is for an indeterminate period of time), and, if that is the case, that the job positions were created within the initial two-year period.
Temporary visa under a labour contract
Brazilian companies may require a temporary visa under a labour contract (No. 99/12) in the event that two-thirds of the employees of the Brazilian company are Brazilian citizens and that two-thirds of the total of the company’s payroll is paid to Brazilian employees.
For purposes of this two-thirds rule, foreign nationals who have been living in Brazil for 10 years or more and are married to Brazilian citizens or have Brazilian children, Portuguese citizens, irrespective of any other individual situation, and nationals of the Mercosur countries who live in Brazil with residence granted under the Agreement, are treated as Brazilians.
Foreign nationals applying for this visa must prove that they have education, qualification and professional experience compatible with the role to be exercised in Brazil. Education and qualification are proven by means of diplomas or certificates, and for people who do not have a college diploma, a minimum of nine years of study must be proven. In the case of candidates whose artistic or cultural activities do not depend on formal education, a minimum experience of three years in the exercise of the profession must be proven. Such documents must be apostilled at the jurisdiction in which the documents were issued and translated in Brazil by a sworn public translator.
Professional experience is proven by means of a letter or any other means admitted by law, showing a minimum experience of two years for medium-level candidates, and one year for candidates who hold a bachelor’s degree. Holders of master’s or PhD degrees, or who have attended postgraduate courses with a minimum of 360 class hours, do not need to submit letters of experience.
If the Brazilian sponsoring company belongs to the same economic group of the current employer of the candidate, then a letter of experience may be prepared in Brazil and signed by an officer of the Brazilian company. In this case, the letter should be prepared in Portuguese, and there will be no need for further notarisation or legalisation.
If the individual has not been working for the same economic group for the minimum required period of time, a letter from prior employers or any other document admitted by law, will also be required.
Proof of education, qualification and professional experience is waived (1) for citizens of South American countries; (2) if the visa being applied is for a legal dependant of a foreign national who already holds a temporary visa for Brazil, and (3) exceptionally, if the compatibility between the professional profile of the candidate and the role to be held in Brazil can be demonstrated through other means.
The foreign national will be an employee of the Brazilian company and has the possibility of earning his or her total remuneration in Brazil or part in Brazil and part abroad (split payroll). The labour contract will be governed by Brazilian labour law and the foreign national will have all the benefits provided by the Brazilian labour legislation, such as a Christmas bonus, 30-day annual holiday, one-third holiday bonus, guaranteed severance fund and social security. During the first two years, the employment contract must be for a definite period of time. Should the Brazilian company want to extend the contract beyond a two-year period, the new employment contract must be for an indefinite term.
The visa will be valid for up to two years (either for one year and then renewed, or two years from the beginning), and at the end of the second year it can be changed into a permanent visa.
In considering the visa extension or change-of-status request, the following aspects will be taken into consideration:
a the need for continuous services to be rendered by the foreign national, respecting the interests of the Brazilian workers;
b compliance with any conditions that may have been established at the moment the initial work permit was granted; and
c the development of the workforce – both Brazilian and foreign employees – from the moment when the original work permit was granted to the moment when the extension is being requested.
In the case of change of status, a justification presented by the foreign national about his or her intention to permanently settle in Brazil is also required.
Temporary visa under a technical assistance agreement with no labour contract
This long-term technical visa (No. 61/04) may be granted for up to a year, renewable for another year, for technicians coming to work in Brazil under a technology transfer or a technical assistance contract, or a cooperation or convention agreement between a Brazilian and a foreign company. Foreign nationals will remain as employees of the foreign company and cannot receive salaries from Brazilian companies. This visa cannot be granted to foreign nationals who will hold functions in Brazil that are merely of an administrative, financial or managerial nature. As part of the work application documentation, a detailed training programme must be submitted, including:
a the professional qualifications of the foreign national;
b the scope of the training programme;
c the number of Brazilians who will be trained;
d the form of execution of the training programme;
e the place where the training will be given;
f the expected duration of the training programme; and
g the results expected from the training programme.
For this type of visa, the candidate must have at least three years of experience in an activity related with the services that are being contracted. An authenticated copy of the contract between the Brazilian and the foreign companies for the rendering of services must also be submitted, as well as proof that whoever signed on behalf of the foreign company was empowered to do so.
ii Labour market regulation
The labour market is protected based on the legislation under which for any given three employees, two-thirds must be Brazilian, such rule being applicable to both payroll and headcount.
iii Rights and duties of sponsored employees
In Brazil, the obligations placed on employees with sponsored status vary depending on the type of visa applied for.
The normal rule is that the foreigner can only work for the employee sponsoring the visa, and only in the position or function for which the work permit was granted. Only when a foreigner holds a permanent unconditional visa would he or she be free to work for another company.
All temporary visas without a local employment contract and internship visas can never be changed to a permanent visa.
Student visas may be changed to a temporary visa with a local employment contract and, later, to a permanent visa.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Investor and entrepreneur visas are qualified as the same, being regulated by No. 118/15. This visa can be granted to foreign nationals who want to come to Brazil to invest their own foreign capital in Brazil in productive activities.
Foreign nationals will need to prove the investment of a minimum amount of the equivalent, in foreign currency, of 500,000 reais.
In special situations, if the investment is lower than the equivalent of 500,000 and not less than 150,000 reais, the General Coordination of Immigration may render a decision granting a visa to foreign nationals who can prove the social relevance of the projects.
The visa will be conditional for the initial three years and the renewal of the RNE and the unconditional permanent visa will be obtained provided that the foreign national proves, at the end of such term, that he or she remains a foreign investor, that the business plan was complied with, and that the project generated the job positions for Brazilians that were notified in the original visa application.
As to skilled migrants the new Migration Law has a provision that they can apply directly for a visa, even if they do not have a Brazilian sponsor. This, however, will still need to be regulated, as it is a completely new approach in Brazil.
VI OUTLOOK AND CONCLUSIONS
As to the changes, due to the new Migration Law No. 13445/2017, Brazil is truly open and understands the importance of immigration for the country’s development. Brazil is aiming to make relevant, ethical, moral and economic changes to ensure more modern legislation. Not only does the law focus on business, but it also takes into consideration the importance of humanitarian immigration rights and family reunion.
Brazil is a prominent country for immigration and business and the crisis has lowered real estate costs. The foreign direct investment made in 2016 was higher than that in 2015. Brazil is eager for the development of new sectors and industries and is making it easier for foreigners to work and travel in Brazil.
In Brazil, there is already a variety of industries and sectors, such as renewable energy, oil and gas, information technology, healthcare, manufacturing, biotechnology and pharmaceuticals, that can benefit from the transfer of technology and know-how of companies that have developed their business around the world.
1 Maria Luisa Soter is a partner and Gabriela Lessa is a senior counsel at Veirano Advogados.
2 Estimate provided at the official Brazilian Institute of Geography and Statistics at: www.ibge.gov.br/home/.
3 The Immigration Law, Decrees, Administrative Orders, Administrative Resolutions, Normative Resolutions and Recommended Resolutions are available at www.trabalho.gov.br/trabalho-estrangeiro/2015-09-03-19-52-17.
6 Detailed information on the Ministry of Foreign Relations can be found at www.itamaraty.gov.br/en/the-ministry.
7 Article 354 of the Brazilian Labour Code.
8 More Doctors – Visa (VICAM). Detailed information on the programme and the list of countries whose nationals can apply for this visa can be found at http://miami.itamaraty.gov.br/en-us/more_doctors_for_brazil.xml.
9 Article 354 of the Brazilian Labour Code.